Summary: At the
commencement of trial, claimant objected to exhibits provided after the
exchange date. Claimant had not placed these objections in the Pretrial
Order. Claimant did not provide respondent with medical records of physician,
although copy of opinion written to claimant's counsel was provided. Claimant
argued medical records themselves were not necessary where opinion was
stated in letter.

Held: Trial setting
vacated. Claimant should have provided the medical records long before
the opinion letter under the Court's standing rules and the Scheduling
Order regarding exchange of medical records. When surprised by the opinion
letter, respondent should have requested an extension of dates set out
in the Scheduling Order. If objecting to late exhibits, claimant's counsel
should have noted those objections in the Pretrial Order. Litigation in
the WCC is not a game of hide the ball. The rules and orders of the Court
require full, fair, and early disclosure of information and evidence relevant
to the case. Counsel who disregard deadlines and disclosure requirements
do so at their peril.

Topics:

Discovery: Generally.
Trial setting vacated where parties did not comply with discovery
deadlines and rules set out in WCC rules and orders. Claimant failed
to provide copies of medical records of physician whose opinion he
intended to introduce at trial, relying instead on assertion that
exchange of copy of opinion letter was sufficient. When surprised
by the opinion letter, respondent should have moved for an extension
of deadlines set in the Scheduling Order, rather than proceed on the
assumption new information produced in response to the opinion letter
would be admissible though late. If objecting to late information,
claimant should have noted that objection in the Pretrial Order. Litigation
in the WCC is not a game of hide the ball. The rules and orders of
the Court require full, fair, and early disclosure of information
and evidence relevant to the case. Counsel who disregard deadlines
and disclosure requirements do so at their peril.

Medical Records: Exchange.
Trial setting vacated where parties did not comply with discovery
deadlines and rules set out in WCC rules and orders. Claimant failed
to provide copies of medical records of physician whose opinion he
intended to introduce at trial, relying instead on assertion that
exchange of copy of opinion letter was sufficient. When surprised
by the opinion letter, respondent should have moved for an extension
of deadlines set in the Scheduling Order, rather than proceed on the
assumption new information produced in response to the opinion letter
would be admissible though late. If objecting to late information,
claimant should have noted that objection in the Pretrial Order. Litigation
in the WCC is not a game of hide the ball. The rules and orders of
the Court require full, fair, and early disclosure of information
and evidence relevant to the case. Counsel who disregard deadlines
and disclosure requirements do so at their peril.

Medical Records: Objections
to. Trial setting vacated where parties did not comply with discovery
deadlines and rules set out in WCC rules and orders. Claimant failed
to provide copies of medical records of physician whose opinion he
intended to introduce at trial, relying instead on assertion that
exchange of copy of opinion letter was sufficient. When surprised
by the opinion letter, respondent should have moved for an extension
of deadlines set in the Scheduling Order, rather than proceed on the
assumption new information produced in response to the opinion letter
would be admissible though late. If objecting to late information,
claimant should have noted that objection in the Pretrial Order. Litigation
in the WCC is not a game of hide the ball. The rules and orders of
the Court require full, fair, and early disclosure of information
and evidence relevant to the case. Counsel who disregard deadlines
and disclosure requirements do so at their peril.

Procedure: Pretrial
Order. Trial setting vacated where parties did not comply with
discovery deadlines and rules set out in WCC rules and orders. If
objecting to late information, claimant should have noted that objection
in the Pretrial Order. Litigation in the WCC is not a game of hide
the ball.

Procedure:
Trial: Continuance. Trial setting vacated where parties did not
comply with discovery deadlines and rules set out in WCC rules and orders.
Claimant failed to provide copies of medical records of physician whose
opinion he intended to introduce at trial, relying instead on assertion
that exchange of copy of opinion letter was sufficient. When surprised
by the opinion letter, respondent should have moved for an extension
of deadlines set in the Scheduling Order, rather than proceed on the
assumption new information produced in response to the opinion letter
would be admissible though late. If objecting to late information, claimant
should have noted that objection in the Pretrial Order. Litigation in
the WCC is not a game of hide the ball. The rules and orders of the
Court require full, fair, and early disclosure of information and evidence
relevant to the case. Counsel who disregard deadlines and disclosure
requirements do so at their peril.

¶1 This matter came to trial
in Billings on October 18, 1999. At the commencement of trial the claimant
objected to the introduction of Exhibits 26, 27 and 31, as well as testimony
based on or reflected in those exhibits. Claimant reported that the exhibits
were not provided to him until October 7, 1999, long after the exchange
date of September 10, 1999, and were therefore untimely. On the other
hand, claimant failed to list his objection to the exhibits in either
the proposed or the final pretrial order. According to claimant he "reserved"
his objections to the exhibits at the time of the pretrial conference
because he did not receive the exhibits until October 7, 1999, and had
not had time to review them. He argued that the exhibits presented new
medical and vocational information which came as a surprise and that he
did not have time to prepare counter-evidence.

¶2 Initially, it is plain that
the respondent failed to provide the exhibits within the time specified
by the Court's Scheduling Order. Respondent did not seek nor obtain an
extension of time.

¶3 However, it is equally plain
that the claimant's objections to the exhibits were untimely. He received
them October 7. The pretrial conference was not until October 12, 1999.
The Court's hearing examiner, Jay Dufrechou, informs me that he told claimant
that the objections must be in the Final Pretrial Order, and the Court's
own Scheduling Order required them to be in his Proposed Pretrial Order
presented on October 12, 1999. Leave was not granted to postpone identification
of the objections to the time of trial. Moreover, it is no excuse that
claimant's attorney had not read the exhibits as they are not that voluminous
and there were five calendar days between receipt of the exhibits and
the pretrial conference. Moreover, claimant had three additional business
days prior to the scheduled trial date to read the exhibits and inform
both respondent and the Court of his objections. Rather, claimant chose
to spring them on the Court and respondent at the commencement of trial.
This is the very sort of surprise the deadlines in the Scheduling Order
are designed to prevent.

¶4 Further, during discussion
of the claimant's objections, the Court learned that the claimant had
not furnished medical records of Dr. Dean C. Sukin, whose opinion claimant
intends to rely upon at trial. The first information that the respondent
had concerning Dr. Sukin was when it received a copy of an opinion written
in response to a letter from claimant's counsel. The letter, dated June
22, 1999, did not contain any information about Dr. Sukin's treatment
of claimant, and was furnished to respondent in early July. Respondent's
counsel on July 14, 1999, requested claimant's counsel to provide Dr.
Sukin's records pertaining to claimant. Claimant's counsel ignored the
request and instead, on July 22, 1999, filed a Petition for Hearing, then
when asked for the records in discovery furnished a written release rather
than the records. Claimant's counsel informed the Court that he did not
obtain Dr. Sukin's medical records for treatment even though claimant
was treated on three occasions in 1998 and two in 1999. Moreover, claimant's
attorney contends that Dr. Sukin is claimant's treating physician. Yet
the first time the respondent was made aware of Dr. Sukin was in early
July when claimant's attorney furnished Dr. Sukin's letter.

¶5 Claimant's attorney argued
that the medical records were not necessary since Dr. Sukin had put his
opinion in writing. The Court would point out that the opinion letter
of the sort written here may not constitute a medical record kept in the
ordinary course of business and may not be admissible if objected to.
More importantly, a review of Dr. Sukin's medical records shows that they
are highly relevant to evaluating his opinion since they contain his examination
and treatment notes and also record that on June 10, 1999, just days before
claimant's counsel requested the doctor's opinion, the claimant showed
up without an appointment at the doctor's office and told the doctor's
office personnel that "he was told by his attorney to come in and see
Dr. Sukin no matter when his back hurts since they can never pinpoint
exactly when it hurts." (Ex. 3 at 4.) He was actually seen by the doctor
on June 11, 1999, and by June 15, 1999, the doctor had received a letter
from claimant's attorney requesting an opinion.

¶6 In his Petition for Hearing
claimant's counsel certified:

Petitioner has exchanged
all available medical records relating to the injury
with the defendant and will continue to do so. [Emphasis added.]

The records were available
to claimant's counsel and could have easily been obtained by him when
he requested the opinion and when he met with the doctor; yet even in
the face of the written request of July 14, 1999, he declined to do so.

¶7 Claimant and his counsel
should have obtained and furnished respondent with the records and done
so prior to filing the Petition for Hearing, especially since they intended
to rely upon Dr. Sukin's opinion and that opinion did not disclose his
examinations and treatment of claimant. Claimant's counsel's representation
in the Petition for Hearing that he had furnished all available medical
records was misleading at best. The objection to the exhibits was untimely.

¶8 On his part, respondent's
counsel failed to seek extensions of time when on September 1, 1999, he
finally secured Dr. Sukin's records. Respondent disclosed the new exhibits
and witness information a month after the disclosure deadline and a mere
ten days before trial. The potential for prejudicing claimant's ability
to respond to the new information and prepare for trial is obvious.

¶9 Litigation in this Court
is not a game of hide the ball. The rules and orders of the Court require
full and fair, early disclosure of information and evidence relevant to
the case. Counsel who disregard deadlines and disclosure requirements
do so at their peril.

¶10 Under the circumstances
the most appropriate remedy was, and is, to vacate the trial and allow
both sides to adequately prepare their cases with full disclosure of each
other's evidence. This matter will be reset for the next Billings term
of Court unless the parties agree to an earlier date which is also convenient
with the Court. A new scheduling order with new deadlines will be issued.